The European Commission's Digital Single Market Strategy for Europe

The European Commission's (the "Commission") Digital Single Market ("DSM") strategy was originally published in May 2015 with the aim of developing the EU's digital economy by creating a free and secure DSM, thus making it easier to access online products and services throughout the EU. In addition, all copyright initiatives within the DSM strategy aim to “modernise” the current EU copyright framework and associated rights relating to certain online transmissions of broadcasting organisations and retransmissions.

As part of the strategy, in December 2015, the draft Regulation on portable content was published. Currently, due to the territorial nature of copyright, consumers are cut off from online audio-visual services and premium sports offers as soon as they leave their home country. The draft Regulation proposes an obligation on providers of paid for content to make such content portable, thus enabling subscribers to use their online subscription whilst they are temporarily in another Member State. It is clear that some of the Commission's current plans represent the steps taken by the EU towards more harmonised rights (although they still fall a long way short of the unitary copyright title that was proposed in a report published by Julia Reda last year).

On 14 September 2016, in line with the DSM strategy, the Commission published a series of legislative proposals that will have a significant impact on EU copyright laws. These included the following; (i) a Communication entitled “Promoting a fair, efficient and competitive European copyright-based economy in the Digital Single Market”; (ii) a proposed Regulation on the exercise of copyright for online transmission of TV and radio broadcasts; (iii) a proposed Directive on copyright in the Digital Single Market; and (iv) a proposed Directive and Regulation implementing the Marrakesh Treaty.

In order to ensure the framework is "fit for the digital age", the Commission’s three priorities are:

1. Developing a fairer marketplace for creators and the press

The Commission has an underlying concern about a gap in revenue generated online. The proposed Directive aims to reinforce the position of rights holders to negotiate and be remunerated for the online exploitation of their content on video-sharing platforms such as YouTube.

In addition, and more controversially, there is a proposal to introduce online intermediary liability. Service providers and hosting platforms that store and provide access to large amounts of copyright works will be under an obligation to take, whilst co-operating with rights holders, appropriate and proportionate measures to ensure the functioning of agreements with right holders for the uses of their works. For this to be successful, active co-operation between the stakeholders in this area is vital.

The Commission has also proposed to introduce a new related right for "press publishers" which has also been subject to some criticism. As publishers will legally be recognised as rights holders, they will be in a better position when they negotiate the use of their content with online services and/ or better able to fight piracy. Insofar as digital users are concerned, this will cover the same rights and exceptions in the InfoSoc Directive (29/2001).

2. Adapting copyright exception for research, education, cultural heritage and the inclusion of disabled people

The proposed Directive also introduces new mandatory exceptions; (i) to allow educational establishments to use materials to illustrate teaching through digital tools and in online courses across borders (ii) for researchers across the EU to use text and dating mining technologies to analyse large sets of data for the purposes of scientific research; and (iii) to allow cultural heritage institutions to preserve works digitally.

There are also two legislative proposals to specifically implement the Marrakesh Treaty in order to facilitate access to published works for persons who are blind, have other visual impairments or are otherwise print disabled.

3. Wider online access to content across borders

The legal mechanism proposed by the Commission (which has been incorporated in the proposed Regulation) aims to make it easier to complete licensing deals making audio-visual works available on VoD platforms. The new rules would simplify the process for clearing the rights required for certain online services and should make it simpler to clear the rights that are needed for certain online services provided by broadcasters such as catch-up services. The development of practical tools such as licensing hubs that will make licensing for the exploitation of audio-visual works in territories across the EU more efficient and easier has also been encouraged by the Commission.

What's next?

Once the suggested legislative proposals are agreed by the Commission, they will need to be approved by the European Parliament and Council.